In this case, the Applicant, a self-identified Black male of East Indian descent who was employed as a security guard, alleged discrimination against the Respondent security company on the basis of race, colour, place of origin, ethnic origin, disability and age, contrary to sections 5(1), 5(2) and 9 of the Code. The Respondent stated that the Applicant had been terminated after he was involved in an egregious incident at the assigned work site involving the exchange of unauthorized parking passes to cafeteria staff in return for free beverages from them.

Employment Standards had determined that the Applicant was not entitled to termination pay since he had been guilty of wilful misconduct. Nevertheless, the Tribunal refused to dismiss the Application on the basis that the substance of the Application had been dealt with in another proceeding since none of the Code-related allegations in the Application were addressed in the ESA proceeding.

The Applicant cited the several incidents of discrimination against the Respondent, for which he sought substantial monetary compensation:

After his return from a medical leave, the Applicant claimed that a specific Respondent employee, Ms. Oza, an employee who he believed had supervisory authority over him, tried to have him demoted. The Tribunal rejected this allegation on the basis that it was based on hearsay information and that the Applicant had not identified the informant nor how he or she would have known this information.

The Applicant claimed that he was subject to discriminatory comments on the basis of his ethnic background, namely that he was called "Son of Slave" by Ms. Oza in the presence of other employees, a derogatory and demeaning term about the Applicant's ethnic group. With respect to this allegation, the Tribunal held in favour of the Respondents, noting that the Applicant had not mentioned this allegation in his Application and that sufficient particulars of the allegation had not been put into evidence. What language was the remark made in? What was the context of the statement?

The Applicant claimed he was improperly excluded from radio communications during the course of his shifts because of his race, but was not aware whether other security guards were being treated in a similar way. The Respondents claimed that this did not occur, or if it did, any denial of access was not done purposely and was as the result of faulty radios. The Tribunal accepted the Respondents' version of events, noting that even if he had been improperly excluded somehow from radio communication there was not evidence that this was done for reasons related to Code grounds.

The Applicant claimed he was improperly denied computer access by the Respondents on the basis of Code Grounds. Again, here, the Tribunal sided with the Respondents, finding that the Applicant was only denied access to specific terminals for logistical reasons and that any improper denials were not linked to Code grounds in any event.

The Applicant claimed he was falsely accused and verbally disciplined for giving false evidence to the media by the Respondents with respect to a security incident that had occurred in October 2008. The Tribunal rejected the Applicant's allegation here too, preferring the Respondents' evidence that the Applicant had been disciplined for violating company policy in not waiting for the police and ambulance before attending at the scene.

With respect to the Applicant's position that he had been erroneously and falsely accused by the Respondents of giving free parking passes to cafeteria staff in violation of company policy on the basis of his ethnicity and race, in purported justification of his termination, the Tribunal concluded on all the evidence that the termination, while maybe not entirely fair, was not discriminatory:

In my view, the Respondents have established a reasonable non-discriminatory explanation for the termination of the Applicant's employment.

In this case, the Applicant filed an application alleging discrimination and harassment in employment contrary to the Ontario Human Rights Code. The Tribunal issued a Notice of Confirmation of Hearing to the parties, requesting that they comply with their disclosure obligations under Rule 16.1 of the Tribunal's Rules of Procedure.

Rule 16.1 states:

Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery): a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and, b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.

The Respondents did not comply and the Applicant sought an Order compelling produce of documents from the Respondents. The Tribunal ordered the Respondents to comply with the requirement under Rule 16.1 within one week.

In this case, the Applicant filed an application alleging discrimination against the Respondent. The Respondent had continued to fail to file a response in spite of rulings and notices by the Tribunal that it do so in accordance with the Rules of Procedure.

Rule 5.5 of the Tribunal's Rules of Procedure provides:

Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may: a) deem the Respondent to have accepted all of the allegations in the Application; b) proceed to deal with the Application without further notice to the Respondent; c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding; d) decide the matter based only on the material before the Tribunal.

In accordance with Rule 5.5, the Tribunal held as follows:

. . . the Respondent is deemed to have waived all rights with respect to further notice or participation in the proceeding. The Tribunal will proceed without the participation of the Respondent. The Respondent is deemed to have waived its right to participate pursuant to Rule 5.5(c) and to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

...........

If you believe you have experienced discrimination, contact a lawyer who can advise as to your rights and entitlements under the Ontario Human Rights Code and other relevant legislation.

The Ontario Human Rights Tribunal has ordered National Money Mart Company to pay $30,000 in compensation to a former, one-year employee of the company who had been subjected to ongoing, serious sexual harassment by her workplace supervisor.

With the Ontario Court of Appeal's June 25, 2009 ruling in Slepenkova v. Ivanov, it is now clear that the nearly-universal pronouncements by management lawyers as to the death of Wallace damages after Honda and Keays may have been a bit premature.

In Slepenkova, the Ontario appellate court upheld a two-month notice extension for an employer's bad faith termination, even though no evidence was led at trial as to the specific damages the employee directly incurred as a result of the bad faith. This appeared to place the trial Judge's decision at odds with the new Wallace test set out in Honda.

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Wise Law Blogfeatures timely articles on legal developments in Canada and the United States, along with commentary on Canadian politics, American politics, technology and noteworthy current affairs.

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Garry J. Wise is primary contributor to Wise Law Blog. He is a Canadian litigation lawyer who practices with Wise Law Office,Toronto. He is a graduate of Osgoode Hall Law School and was called to the Ontario Bar in 1986.

Garry's colleagues at Wise Law Office, as well as occasional guest bloggers, also contribute to Wise Law Blog.

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